In Depth

When the moment of death finally arrives, it ends what may be described as a long legal journey to justice within the capital
punishment system.

Whether all the costs justify the justice sought is an ongoing debate that probably won’t be settled soon, but it’s
one that Indiana’s legal community continues to discuss as courts analyze the legal issues and policymakers debate what
justice is ultimately worth.

Path to execution

Creason

The nonprofit Death Penalty Information Center reports that the average appeals process in capital cases in the United States
is now 12.7 years, longer than it’s ever been, and that exonerations have cast doubt on the entire system. As a result,
courts generally are proceeding more cautiously on the cases before them. The appeals process is especially lengthy because
death row cases have two levels of judicial review at the state and federal levels, as well as executive clemency, and the
legal standards for defense attorney representation is more stringent than non-capital cases.

Youngcourt

Since Indiana brought back the death penalty in 1977, data shows that the 16 people who have gone through the appellate process
in this state before being executed have averaged 17 years on death row – ranging from 13 to 23 years. Four others have
been executed in this state after waiving their non-mandatory appeals, and it’s usually only taken a year or two before
the death sentence was carried out from the time that penalty was imposed.

Fourteen people are currently on Indiana’s death row, their sentencing dates ranging from 1986 to as recently as 2008.
Some of those have been stayed by courts while others remain moving through the appellate process. Six death penalty cases
remain pending at the trial level in Boone, Lake, Marion, Sullivan, and Vanderburgh counties.

Overall, the timeline for a death penalty appeal depends on how quickly the courts move and whether it gets reversed and
remanded, or whether a case gets bogged down by more complicated legal issues such as questions of mental health.

“Every case brings a new set of dynamics, and there’s no cookie cutter death penalty case,” said Indiana’s
Chief Deputy Attorney General Gary Secrest, who was chief counsel of the AG’s Appeals Division until mid-2010. “Courts
move these death penalty cases along as well as they can, but that takes time.”

One of the state’s longest-running capital cases was brought to a close in September 2010 when Madison County ended
its 27-year case against Mark Allen Wisehart. In the end, Wisehart was not sentenced to death – he instead received
a 75-year prison sentence for a 1982 murder. The federal courts overturned the death penalty sentence in May 2009 and remanded
for a new trial after it was discovered that a juror had become aware of a polygraph test not admissible in court.

Indiana capital case statistics show the likelihood of a death sentence actually being
carried out is as low as 5 percent.

The Indiana Public Defender’s Council analyzed data at the trial and appellate levels, from the death sentences handed
down between 1990 and 2010 and more broadly the appellate level reversal rates dating back to the punishment reinstatement
in 1977. Overall, only 16 percent of the prosecutor requests filed actually result in a death sentence, and the appellate
reversal rate in total is about 68 percent – meaning of 100 total requests only about 32 would survive all levels of
appellate and clemency review.

For that reason alone, many attorneys on the defense side contend that capital punishment isn’t worth the cost when
the odds are it won’t be the end result. Prosecutors are more selective in the cases they choose to pursue, in order
to survive not only the trial level but the long appellate process.

“The toll these cases take on the legal system is so huge, and they have a resulting ripple effect on the rest of the
court calendar and system overall,” said Rick Kammen in Indianapolis, who’s handled state and federal death penalty
cases and is considered a national expert in this area. “Everything becomes exponentially more complicated, and it’s
such a drain on resources and energy for everyone involved.”

Legally speaking

Prosecuting and defense attorneys say many of the same issues are often raised at the appellate level – ineffective
assistance of counsel, mental health questions, due process, or appropriateness of a sentence. Many novel legal issues can
also be explored during this process and unresolved questions of law can impact how quickly the courts move on these matters,
they say.

The capital system has significantly changed during the past two decades, after Indiana Criminal Rule 24 took effect in 1992
and created mandatory standards for trial and appellate capital counsel. In subsequent years, the state has seen changes including
the addition of life without parole as an alternative to death, the banning of executions of the mentally retarded, and juries
rather than the judge being given the final decision-making power on a death sentence. The method of execution has also changed
from electric chair to lethal injection, and the state continues studying the issue of mentally ill defendants being sentenced
to death.

“Lots of times (defendants) will try to raise the same issues they’ve already tried unsuccessfully to argue before,
but really this can be an up and down process that’s not always clear how it will go,” said appellate chief counsel
Stephen Creason in the AG’s Office.

Issues raised in cases sparking novel questions often go in waves, attorneys say, and some point to mental health and DNA
or evidence testing as two areas that are currently evolving in the courts.

Often, the cases boil down to a battle of the experts during the appeals process because even the physicians can’t
agree on someone’s mental state.

For example, in the capital case of Eric Holmes – sentenced to die for a 1989 double murder at a Shoney’s restaurant
in Indianapolis – the proceedings have been on hold for the past year after the 7th Circuit Court of Appeals found the
convicted murderer incompetent to proceed with the federal habeas review.

“Mental retardation has faded from appellate review because it’s settled, but really anything having to do with
mental health is still out there unresolved,” Creason said. “That concept of mental illness isn’t a direct
science and there’s a lot of interpretation even among the medical experts, and so that makes it difficult for the courts
to decide.”

For those integrally involved in trials that resulted in the initial death penalty decisions, these later happenings can
make them question whether it’s truly worth it.

“We have to ask why it takes 10 to 20 years to get through this whole appeals process, because that’s just not
fair for the citizens or defendant or family of the victims,” said Hamilton Superior Judge Steve Nation, who handled
one death penalty case in his time as county prosecutor and acted as special judge on a post-conviction case in the past decade.
“Looking at the effectiveness, I don’t think it has much of a deterrent effect because it takes so long in carrying
it out. You forget what a person is on death row for in the first place.”

Judge Nation handled a Carmel triple-murder case in the early 1990s before taking the bench, and he was the one who made
the decision to pursue a death sentence even though that case ended up with a life without parole sentence. As a judge, he
presided over the post-conviction relief proceedings of Norman Timberlake, who was sentenced to die for shooting a state police
trooper in 1993. Timberlake died in prison of natural causes in late 2007 while awaiting the state Supreme Court’s setting
of a new execution date.

Judge Nation said he believes the death penalty is justified because society needs to
be able to return in kind what’s been done to the community. But he also thinks the process needs to be revised to make
it more effective.

“We could debate this issue forever and I don’t think either side is wrong, but to me unless we speed this up,
I don’t see it being effective the way it’s meant to be,” he said.

Bedford death penalty defense attorney Lorinda Youngcourt said she doesn’t think pursuing capital punishment is worth
the effort often required, given the typical result.

“If it is the ‘absolute test,’ then it has failed,” she said. “It brings little, if any, closure
to the victim’s family and tortures the defendant’s family. It creates untenable situations for the correctional
officers who are required to care for the defendant and are then asked to kill him. It is a political hot potato which lends
itself to the players pursuing capital charges and imposing death sentences in order to make a ‘name’ to win an
election, or to be seen as being tough on crime. These are all much bigger issues than what it puts the lawyers and judges
through.”

Inconsistency by jurisdiction in the use and outcome of the death penalty is a problem too, Kammen pointed out. In Washington,
D.C., for example, someone received life imprisonment for killing 48 people, compared to a Texas teenager put on death row
for holding up a liquor store and killing one person.

“Every case is different, but it’s pretty hard to justify a system that is such a random mix of how and when
things happen based on a prosecutor or judge involved,” he said. “I heard someone years ago describe this system
as something that’s like being struck by lightning, and I don’t think it’s changed at all.”•

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